TMI Blog2014 (4) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... y, deals with mineral water not generally but mineral water served for consumption inter-alia at or in the immediate vicinity of any public restaurant or in any club or supplied by a public restaurant or club. Firstly, this contention was not even raised before Tribunal - As noted in the order of Tribunal, no reason whatsoever was given for denial of the benefit as far as mineral water was concerned - The notification entry A-13(3) was applicable inter-alia in respect of non-alcoholic drinks served in restaurants - Had the issue been raised before the authorities under the BST Act, the respondent may well have furnished an answer to the same. It would be unfair to the respondent to permit such a contention to be raised in a reference u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific Schedule Entry C-II-17 for mineral water ? 2. The respondents are registered under the Bombay Sales Tax Act (BST Act) and the Central Sales Tax Act and run several restaurants having permit rooms which serve Indian Made Foreign Liquor (IMFL) as well as non-alcoholic drinks. 3. The respondent was assessed for the financial year 1997- 1998 under the BST Act. The respondent being aggrieved by the assessment order dated 30.03.2001, passed by the Assistant Commissioner of Sales Tax filed an appeal. The Deputy Commissioner by an order dated 15.11.2003, dismissed the appeal. The MSTT by an order dated 21.08.2008 allowed the respondent's appeal. The respondent had contended that the Assessing Authority had erred in levying the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablishment or any part thereof which is generally accessible to members of the public at large. 13% C-II-17 Mineral, medicinal, tonic, distilled, battery or de-mineralised water and water sold under a brand name in sealed, capsuled or corked containers, but excluding goods covered by entry 21 of this part of the Schedule and water for injection 13% The rates were changed by notifications. 5. Mineral water does fall under entries C-II-17. However, in our opinion, it also falls under entry C-II-14 for mineral water is undoubtedly a non-alcoholic drink. Qua mineral water entry C-II-14 is a specific entry in that this entry deals with mineral water not gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such a contention to be raised in a reference under section 61, although it was not raised before the MSTT. 8. Secondly, there is no material on record to establish that in common parlance mineral water would not be included within the ambit of the words non-alcoholic drinks . It is not the appellant's case that mineral water served by the respondent was an alcoholic drink. The appellant admits that it was non-alcoholic drink. That the plain meaning of the words non-alcoholic drinks includes mineral water is not and indeed cannot be denied. Thus absent any material, it is not possible to uphold the contention on the basis of the common parlance test. 9. The matter, therefore, does not raise a substantial question of law. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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